The First
Amendment provides that:“Congress
shall make no law…abridging the freedom of speech…” This language has not
received a literal interpretation by the Supreme Court.On the one hand, the coverage of the
amendment is broader than the language implies.To begin with, the First Amendment applies to more than just
Congress.As we have seen in earlier
classes, many of the protections of the Bill of Rights, including the First
Amendment, have been extended to state and local governments.Also, the prohibitions of the First
Amendment apply to all branches of government, not merely the legislature.A court that enjoins a peaceful march or a
local school board that fires a teacher for criticizing one of its policies
would be in violation of the First Amendment.The First Amendment, however, does not apply to private action.The board of a private school could, in
fact, fire one if it’s teachers for speaking out.

On the
other hand, despite the absolutist language “shall make no laws abridging…,” the Supreme Court has consistently allowed
some governmental controls on speech.There are some types of speech, such as obscenity, that are not
protected by the First Amendment.Governments may also place some reasonable controls on the time, place,
and manner of communication, although they must do so very carefully in order
to avoid a violation.Much of the case
law in this area revolves around what kind of speech can be controlled and how the
government may go about doing so.In
many areas there are no clear lines separating constitutional from
unconstitutional control of speech, and cases involving such line drawing have
often been very controversial.

A.What is Protected Speech?

1.Conduct versus Speech

When the
government tries to regulate or punish any kind of communication, a number of
questions must be answered to determine if the controls will survive a
constitutional challenge.The most
basic is whether the conduct to be controlled qualifies as “speech.”

This is not
as simple as it may seem.Numerous
activities that do not involve the use of words have been held to be speech,
while in some cases, use of language, both written and oral, may not be
considered speech.Examples of
expressive conduct that have been held to be speech are wearing black armbands
or burning the American flag to protest the Vietnam war.Although no words are spoken, the acts
themselves are intended to communicate ideas and may be given the same protection
as actual words.On the other hand,
the government may punish painting words on a public building (graffiti), or
threatening to reveal damaging secrets if not paid (blackmail), even though
that conduct involves written or spoken words.

2.Is it Protected Speech?

Next, it
must be determined if the speech in question is protected by the First
Amendment.Certain kinds of speech have
not been given constitutional protection.For example, states may allow damage suits against persons who have made
slanderous or libelous statements.Slander consists of orally making and libel consists of publishing false
statements that are damaging to the reputation of another.Another example of unprotected speech is
incitement to illegal action.Someone
who stands before a crowd and encourages them to start a riot would not receive
First Amendment protection.

a.Obscenity

Two
particular kinds of unprotected speech, obscenity and fighting words, have
given the courts particular difficulty.The Supreme Court has struggled to define obscenity.It has held that obscenity is “utterly
without redeeming social importance,” and therefore “not within the area of
constitutionally protected speech.”

In order to
declare material obscene, a court must determine:

(a)that the average person, applying contemporary community
standards would find the work, taken as a whole, appeals to the prurient
interest (defined as a shameful or morbid interest in sex) and is designed to
excite lustful thoughts,

(b)that the work depicts or describes, in a patently offensive
way, sexual conduct specifically prohibited by state law, and

(c)that the work, taken as a whole lacks serious literary,
artistic, political or scientific value.

Defining
the term has proven much easier than applying it.Justice Stewart once wrote of obscenity,“I know it when I see it, and the motion
picture involved in this case is not that.”The Supreme Court has on numerous occasions overturned convictions for
obscenity without giving any reasons other than simply stating that the
material was not obscene.

b.Fighting words

The other
difficult area of unprotected speech is “fighting words.”In 1942, in the case of Chaplinsky v. New Hampshire, the Supreme Court upheld the
conviction of a man for giving a speechdenouncing all religions as a racket andreferring to one listener as “a God damned racketeer and a
Fascist.”The Court found no
constitutional protection for “fighting words,” defined as “those which by
their very utterance inflict injury or tend to incite an immediate breach of
the peace.”

Although
the Court has never overruled Chaplinsky,
it has never again upheld a conviction for fighting words.Some activities held not to be fighting words, and therefore protected have been:burning the American flag, wearing a jacket
with the words “fuck the draft,” the Ku Klux Klan’s burning of a white cross,
and a Nazi march through a predominately Jewish neighborhood.The Court has held that in order for speech
to be considered fighting words, it must normally be directed at an individual
and not at a group.It has also held
that authorities cannot use the mere possibility of a violent audience reaction
to arrest a speaker.

B.What Level of Protection does the Speech
Receive?

Not all
constitutionally protected speech is given the same level of protection.Although it has not been put in a separate
category, political speech has received the greatest protection.The Court has stated that the ability to
criticize the government and government officials is central to the meaning of
the First Amendment.On the other hand,
some types of speech have been given somewhat less protection than other kinds
of speech. One example of this is commercial speech.Until 1975 the Court had held that commercial speech was not
constitutionally protected and could be broadly regulated by the states.Since then, however, the Court has given
commercial speech significant protection, holding, for example, that a state
could not prohibit pharmacies from advertising the prices of prescription
drugs.However, the states still retain
the right to regulate commercial speech in some ways that other types of speech
could not be regulated.For example, a
state may prohibit a manufacturer from making false or unsubstantiated claims about
its product, but a state may not prohibit a politician from making
unsubstantiated claims about his record.

The Court
has also given authorities more power to regulate speech in certain
situations.While a private citizen
could not be punished for using profanity, the Court has held that a public
broadcaster can be punished for using profanity over the airwaves and a student
may be punished for using profanity at school.Although public school students have some free speech rights, school
authorities have much greater authority to control student speech than the
government has to control citizens’ speech generally.

C.How May Speech be Regulated?

1.Content Neutrality

Any attempt
to regulate speech must be content neutral; that is the government may not
regulate speech based either on its subject matter or its viewpoint.An example of impermissible subject-matter
regulation is an ordinance that prohibited any picketing in a certain
neighborhood except labor picketing.An
example of impermissible viewpoint regulation is an ordinance prohibiting signs
critical of a foreign government within 500 feet of its embassy.Although regulation of signs within the area
of foreign embassies might be allowed, the law cannot distinguish between
favorable and unfavorable signs.

2.Prior Restraints

The Court
has established a strong presumption against prior restraint, the attempt to
prohibit speech in advance.Even speech
that may be punished after the fact normally may not be prohibited in advance.For example, if an author makes false and derogatory
statements about an individual in a book, she may be sued by that individual
for damages.It would be almost
impossible, however, for that individual to stop publication or sale of that
same book in advance.

Although
the Supreme Court has announced a few areas in which prior restraint might be
tolerated, they have provided extraordinarily strict limitations. One exception
mentioned by the Court has been for purposes of “national security.”It has stated that the government, on
national security grounds, could prohibit a newspaper from publishing “the
sailing dates of transports or the number and location of troops.”
However,when the government tried to
use this exception to prevent publication of the Pentagon Papers (excerpts from
a top secret Defense Department history of the Vietnam War), the Court held
that the government had not met its very difficult burden of showing immediate
and irreparable damage to the Nation.

Similarly,
the Court has announced that prior restraint is theoretically available to
preserve a defendant’s right to a fair trial.However, a judge must meet a very difficult three-part test to issue a
gag order against the media prohibiting disclosure offacts relating to a criminal trial.The Court has not allowed such a gag order to stand in any case
so far.

3.Vagueness and Overbreadth

When the
government attempts to regulate or prohibit speech, it must contend with the
related doctrines of vagueness and overbreadth.In order not to be “void for vagueness,” any prohibition must
make clear what speech is prohibited.This requirement is designed not only to be fair to the person being
prosecuted, but also to prevent chilling the speech of other individuals,
discouraging them from expression that is constitutionally protected, for fear
it might be punished. A regulation is overbroad if it not only regulates
unprotected speech, but also could be applied to protected speech.

The best
way for a state to protect its legislation from being held vague or overbroad
is to describe, as narrowly and clearly as possible, what speech is
prohibited.The problem, however, is
that as the prohibition gets narrower and more specific, it runs a greater risk
of being held to be unconstitutional content
regulation.For example, the Court has
held a statute prohibiting any “words or abusive language tending to cause a
breach of the peace” void for vagueness and overbreadth.But a statute that prohibited the display of
symbols known to “arouse anger, alarm or resentment in others on the basis of
race, color, creed, religion, or gender” was held to draw unconstitutional
content-based distinctions.